Response to lawsuit asks for dismissal

August 24, 2013

The Barbour County Commission is asking to be dismissed from a federal civil lawsuit filed against it and Barbour County Sheriff John Hawkins by a 19-year-old Moatsville woman.

Hawkins and the commission are named as co-defendants in a 15-count complaint filed by Brittany Mae Keene July 18 in the U.S. District Court for the Northern District of West Virginia's Elkins' office.

In response to Keene's suit, which accuses Hawkins of sexually assaulting Keene and five other women, the commission asks to be dismissed "from all claims, with prejudice" in a "motion to dismiss in lieu of answer" filed Aug. 9.

Hawkins has repeatedly denied Keene's allegations - first on his Facebook wall, then in a written statement issued to media outlets and finally in an Aug. 7 response filed in U.S. District Court.

Keene's complaint alleges the sheriff sexually assaulted her in late July or early August of 2011 and then repeatedly threatened to kill her if she told anyone. It goes on to assert the commission "knew or should have known, of the proclivity and tendency for violence and excessive force of Hawkins in performing his law enforcement duties," but nevertheless "permitted and authorized him to continue in his capacity as sheriff."

However, the commission's attorney, Keith Gamble of the Morgantown law firm Pullin, Fowler, Flanagan, Brown & Poe, contends the commission "cannot be held liable" for Hawkins' alleged actions.

"What they (Keene's lawyers) have alleged is the commission is responsible for Hawkins' alleged actions, but based on 1983 civil rights litigation, there has to be a different showing," Gamble told The Inter-Mountain in a telephone interview Friday. "They cannot hold the commission responsible just on theories of 'respondeat superior' as they've alleged them."

Respondeat superior is a common-law doctrine that says an employer is liable for the actions of an employee when the actions take place within the scope of employment, according to information on the websites of several online legal dictionaries.

So, what allegations in the lawsuit are levied against the commission?

The commission's motion asks that several of those counts be dismissed because of Keene's lawyers' failure to provide specific, supporting evidence.

"The allegations (against the commission) asserted ... are simply conclusory statements void of factual support," the motion states. The motion goes on to say that Keene's complaint fails to establish a "causal link" between the county commission and "the alleged acts of Hawkins."

Finally, in regard to Count 6 and Count 8 of Keene's suit - negligent retention/hiring and negligent training and supervision, respectively - the Aug. 9 motion contends the commission has "no legal duty ... to 'hire,' 'retain,' 'supervise' or 'train' a constitutionally elected official such as Sheriff Hawkins."

On Friday, Gamble said he's yet to find any law stating that a county commission "has to make sure a sheriff is doing x, y and z."

"I can't find anything on it," Gamble said. "I've called other county commissions to see what, if any, responsibility a county commission has to supervise or manage an elected official. The answer, to my knowledge, is none, and the reason is, they're elected officials."

Gamble said county commissions do control "fiduciary" aspects of elected officials' duties, such as allocating money for such officials' budgets.

"However, the county commission is not permitted to make policy for the sheriff's department," Gamble added.

At no point in its motion does the commission state whether or not it believes Keene's allegations against Hawkins.

"We have no knowledge at this point that any of the alleged activity occurred," Gamble said. "Whether he did any of what is contained in the complaint, we don't know any of that. We don't have any evidence in our possession that would suggest that it's true.

"We are not saying that it's not," Gamble continued. "They say they have text messages and emails, but they're allegations and until they prove them to us, that's what they'll remain."

Gamble said he wanted to emphasize the commission is "not saying the sheriff did something."

"We don't know what happened," he said, "but there's no basis to suggest that what she's (Keene) saying is true."

The main message of the commission's filing, Gamble said, is the commission "doesn't have any liability here."